Legitimacy by Law or by Science: The Dilemma u/s 112 of Indian Evidence Act, 1872

A name on paper does not always reflect the blood in the veins- Anonymous

Even though biology writes the truth in DNA, but law, fortunately or unfortunately, edits the story. In this regard, Section 112 of the erstwhile Indian Evidence Act, 1872 (now Section 116 of the BSA) poses such a conundrum considering the legitimacy of the child born during the continuance of a valid marriage between his mother and any man. This provision has long been a cornerstone in family law, aiming to protect the legitimacy of children and uphold the sanctity of marriage. However, with advancements in DNA testing, questions have arisen about the interplay between legal presumptions and scientific evidence.

To put an emphasis on "any man", it does not necessarily imply husband, but apart from husband. The Section creates a conclusive presumption of legitimacy, which can only be rebutted by proving that the husband and wife had no access to each other during the time the child could have been conceived. As far as the advent of the new criminal laws is concerned, Section 116 of BSS, makes no difference in the language or the interpretation of the same. The text remains identical, revealing the legislature’s intent to maintain this longstanding legal principle despite scientific advances.

Irrebuttable Presumption: The Legal Stance

Section 112 of IEA is based on the well-known Latin maxim pater est quem nuptial demonstrate, meaning he is the father whom the marriage indicates. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. The sole exception provided in the law is the proof of "non-access" meaning the husband must prove he had no physical access to his wife at the time of conception. This formidable standard creates what appears to be an almost irrebuttable presumption in many cases, especially where spouses were living together during the relevant period.

Judicial Precedents: Evolution of Thought

1. In Kamti Devi v. Poshi Ram (2001) 5 SCC 31, Supreme Court acknowledged the scientific accuracy of DNA testing but firmly upheld the conclusive nature of the presumption under Section 112 of IEA. The Court further explained that this might appear harsh from the husband's perspective, who would be compelled to bear the fatherhood of a child of which he may be innocent. However, the Court emphasized that "the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception."

2. In Banarsi Dass v. Teeku Dutta (2005) 4 SCC 449, the Court reaffirmed the position taken in Kamti Devi (Supra), emphasizing that the legal presumption would prevail even in the face of contradictory scientific evidence if the condition of cohabitation was met.

3. However, a significant shift in judicial thinking occurred in the year 2014 wherein the Supreme Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576 took a more progressive stance, acknowledging that the scientific evidence should be given due weightage in determining paternity disputes. It relied on Banarasi Dass (Supra) wherein it was held that the result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable.

The Court further declared when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

This judgment marked a pivotal moment in Indian jurisprudence, as it prioritized scientific truth over legal fiction, acknowledging that in some cases, adhering strictly to legal presumptions might perpetuate falsehood rather than serve justice.

1. In Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365, the Court explicitly stated that "proof based on a DNA test would be sufficient to dislodge a presumption under Section 112 of the Indian Evidence Act." The Court acknowledged the need to balance truth-seeking with individual privacy and introduced a nuanced approach allowing a party to refuse the DNA test, though with the potential consequence of an adverse inference being drawn.

2. In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2024) 7 SCC 773, the Court refined its position further by distinguishing between 'legitimacy' and 'paternity' as two distinct legal concepts. The Court observed that ‘Legitimacy' and 'paternity' are two distinct concepts in law. Section 112 of the Indian Evidence Act deals only with legitimacy, and not paternity. The idea behind this provision was to establish a conclusive presumption in favour of the 'legitimacy' of a child to not subject him or her to the stigma of being a 'bastard'. The said presumption, however, is conclusive only as regards the 'legitimacy' of the child and not its 'paternity'."

This distinction is significant as it creates space for courts to order DNA tests to determine biological paternity in appropriate cases without necessarily affecting the legal legitimacy of the child. The Court added that unless the Court feels in certain circumstances that it is against the interests of the child to know of its 'paternity', the Court is justified in ascertaining the 'paternity' of the child through reliable scientific tests such as DNA tests.

DNA Testing: A Delicate Balance

The judicial approach to DNA testing in paternity disputes has evolved from strict adherence to legal presumptions to a more nuanced view that balances multiple considerations. In Goutam Kundu v. State of West Bengal (1993) 3 SCC 418, the Supreme Court laid down important guidelines regarding ordering DNA tests:

1. Courts in India cannot order blood tests as a matter of course;
2. Such an order would not violate the right to personal liberty under Article 21 of the Constitution;
3. However, the court should exercise such power only if the applicant has a strong prima facie case and there is sufficient material before the court.

This cautious approach was further refined in Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633, where the Supreme Court emphasized that DNA tests in paternity matters should not be directed as a routine measure. More recently, in Ashok Kumar v. Raj Gupta & Ors (2021) SCC OnLine SC 848, the Supreme Court reiterated that in circumstances where other evidence is available to prove or dispute the relationship, courts should ordinarily refrain from ordering blood tests. The Court noted that such tests "impinge upon the right of privacy of an individual and could also have major societal repercussions. Indian law leans towards legitimacy and frowns upon bastardy."

This balancing approach represents the courts' attempt to harmonize scientific advances with legal principles, individual rights with truth-seeking, and traditional family values with modern realities.

Exclusion of any amendment in Section 116 of Indian Evidence Act:

The Law Commission of India, in its 185th Report, acknowledged the advancements in scientific methods, including DNA testing. The Commission proposed introducing exceptions to the conclusive presumption, including impotency, blood tests, and DNA tests. This would have allowed scientific evidence to be given proper weight in determining biological paternity while maintaining the legal framework protecting children's legitimacy.

However, for reasons unknown, the same was not incorporated under Section 116 of BSA, increasing the dilemma and the concern of the fathers who are compelled to take the burden of the fatherhood of the child (against their wishes), which even though scientifically or by alleged truth, is not theirs.

As one parliamentary critique noted: "Why is that this bill which is meant to decolonize the existing law, has made no changes to the provision, apart from simply renumbering it as Section 116?"

Should legal fictions yield to scientific truth, or do they serve important social purposes that transcend biological reality?

The legislative intent behind Section 112 of the Indian Evidence Act, 1872, was primarily to protect innocent children from the social stigma and legal disadvantages of illegitimacy. The presumption served multiple societal purposes: it preserved the family stability by discouraging paternity disputes within marriage, it ensured financial support and inheritance rights for children and it protected children from psychological harm that might result from questioning their parentage. 

However, in an era where DNA testing can establish biological relationships with near-perfect accuracy, the rigid application of this presumption can sometimes lead to outcomes that seem to contradict biological truth. Proponents of maintaining the strong presumption argue that it protects children's welfare and family stability, while those advocating for greater recognition of DNA evidence argue that justice requires acknowledging biological reality, particularly in cases where paternity is in genuine dispute.

The Nandlal Wasudeo Badwaik judgment in particular signals a shift toward recognizing that when scientific evidence and legal presumptions conflict, the former might sometimes need to prevail for justice to be served. The Court's distinction between 'legitimacy' and 'paternity' in recent judgments offers a promising framework that could allow for biological truth to be acknowledged without necessarily stigmatizing children or undermining their legal rights.

While the absence of amendments to Section 116 of the BSA represents a missed opportunity for legislative reform, judicial interpretation has somewhat bridged the gap between legal presumption and scientific reality. The law rightly prioritizes the welfare of children and the stability of families, yet in a world of advancing science, legal frameworks must evolve to accommodate both traditional protections and biological realities. The challenge lies in striking a balance that honors truth while protecting the vulnerable, a balance that requires both judicial wisdom and legislative foresight.

Authored by:
Tanvi Mahajan, Advocate
Junior Partner